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Courts of Admiralty may decide upon the construction of treaties. And if they expressly condemn a prize for a breach of treaty, that is binding on our Courts where the same question arises upon the propriety of that condemnation. Purk was to have argued for the defendants.

Postea to the Defendants.

1804.

BARING and Others against The Royal EXCHANGE Assurance

Company.

[107]

BORDENAVE against GREGORY.

Monday,

April 30th.

ferred on re

quest, an

averment that the plaintiff was ready and willing to

transfer, and

THE first count of the declaration stated that the plaintiff, In an action on the 5th of May, 1803, at, &c. was possessed of 10007. on the case for not accepting stock 3 per cents, the said stock, together with other capital stock agreed stock of the plantiff, then standing in his name in the books to be transof the Bank of Engiand; and the plaintiff being so possessed, afterwards sold to the defendant the said 10001. stock for 6917. per cent., and then and there promised the defendant "that he (the plaintiff) would transfer the said 1000. stock "to the defendant in the said books of the Bank, upon pay- requested the "ment by the defendant of the said price for the same, defendant to "when the plaintiff should thereto be afterwards requested; "and in consideration of the premises, the defendant then " and there promised the plaintiff to accept the same stock, "and pay for the same at the rate aforesaid, when the "fendant should be thereunto afterwards requested." The plaintiff then averred "that he was ready and willing, and "offered to transfer the said 1000. stock to the defendant, "according to the form and effect of the said contract, upon payment by him of the said price for the same, and then and there requested the defendant to accept the same "stock and pay the said price," &c.; yet the defendant would not, when so requested, or at any time, accept the said 1000l. stock, or pay the price, &c.; but then and at all times

de

accept the stock, which he refuse 1, can only be satisfied by shewing an actual tender and refusal, or that the plaintiff wait ed at the Bank

on the day when it was

understood that the trans.

fer was to be made, until

the close of

the transfer books, which

was the latest time when the transfer could be made. Semble, that in such an action it is not necessary by the stat. 7 Geo. 2, c. 8, s. 6, for the plaintiff to shew that he transferred the stock to another at the next possible transfer day after default made by the original contractor, provided the stock were transferred before the action brought: though, if the plaintiff might have obtained more for the stock by sale on any intermediate day between the original default and the actual sale, that will go in reduction of the damages sustained by the plaintiff by such default.

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against

1804. omitted and refused so to do, &c.; by reason whereof the BORDENAVE plaintiff was obliged to sell and transfer, and has sold and transferred the said 10001. stock for a less price than that for which he had sold the same to the defendant, viz, at 647. per cent., being the best price he could obtain for the same, to the [108] plaintiff's damage of so much, &c. At the trial at Guildhall before Lord Ellenborough, C. J. at the Sittings after Hilary Term last, the evidence, so far as it was material to raise the questions made, was, That the contract for the sale of the stock was made on the 5th of May 180$, a little before 12 o'clock at noon; but there was no proof of any direct application made to the defendant to accept the stock on that day, nor was it shewn that the plaintiff had waited till the closing of the transfer books at the Bank for the defendant to appear and accept the transfer of it. But a few days afterwards an offer was made of the stock, which was then refused to be accepted by the defendant, alleging that the contract had been made under an impression of the truth of certain pub lic intelligence of peace, communicated to the Lord Mayor, which afterwards turned out to be a forgery; in consequence of which a resolution had been entered into by the members of the Stock Exchange, that all bargains made on that day should be rescinded (a). And in consequence of the defendant's refusal, the stock was afterwards sold at an inferior price on the 12th of May, there having been no intermediate rise of the funds between the 5th and the 12th. After a verdict for the plaintiff for the difference, two questions, which had been made at the trial, were again raised on a rule for setting aside the verdict; 1st, Whether it were not incumbent on the plaintiff, in support of the allegations in his declaration, to prove either an actual tender of the stock and offer to transfer it on the 5th of May, the day on which it was contracted for? or that which was an equivalent in law, namely, that the plaintiff waited till the last moment of the day when the transfer books at the Bank were closed, ready to have made the transfer, if any person had been present on the part of the defendant to have accepted it? 2diy, Whether, in order to entitle the plaintiff to recover, it were not necessary for him by the stat. 7 Geo. 2, c. 8, to shew an actual trans

[109]

(a) Vide the case of Heckscher v. Gregory, 4 East, 608.

fer

fer to some other on the next transfer day (which was the 6th)? and whether a transfer on the 12th were sufficient, not having been made as soon as it might? With respect to this last question,

The Court reserved it for future consideration, when it might be put in a more solemn course of investigation in the shape of a special verdict, or upon a bill of exceptions. But the majority of the Judges were inclined to consider, that the act of parliament did not require as a condition precedent to maintaining the action for damages for not performing a contract to purchase and accept stock, that the proprietor should, on the defendant's neglect or refusal to accept the stock, have sold it to another on or before the next transferday after such default: but it merely says, that it shall be lawful for him to sell such stock, not saying when. And it was sufficient, they intimated, if the stock were sold and transferred at any time prior to the commencement of the action against the defendant who had so made default ; especially where due diligence had been used by the proprietor, as the jury had found in this case; though, if the stock had risen in value in the intermediate time between the default of the defendant and the time when the stock was actually sold and transferred, so that the plaintiff might have ob tained a higher price than that for which it was actually sold, but less than the price contracted for by the defendant, they thought it material for the consideration of the jury in assessing the damages; because the statute 7 Geo. 2, c. 8, s. 6, directs, that the party injured shall recover from the person who first contracted for the purchase of the stock "all the damage which will be sustained thereby," that is, from his default; and the damage to be sustained thereby does not necessarily mean the difference of the price on the day of the actual sale, and that for which it was contracted to be sold for if he might have obtained more at any intermediate time, he may not be said to have thereby sus tained (that is, by the default of the defendant) the damage which he incurred by waiting, but by his own default. The jury, therefore, were in each case to inquire, Whether the plaintiff might not have sold sooner than he did, and thereby saved part of the loss?

As to the first question, Garrow and Gibbs, in support of

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1801.

BORDENAVS

against GREGORY.

[110]

1804.

BORDENAVE

against

the rule, referred to the case of Lancashire v. Killingworth (a), where, in covenant for not accepting stock of the Hudson's Bay Company, at the Company's house, on a certain GREGORY, notice, the plaintiff averred that he gave the notice to the other party to come to the Hudson's Bay house and accept the stock, and that the plaintiff was ready there at the day, and offered to transfer it, but that the other party did not come to accept it, nor had paid the price agreed, &c. And upon demurrer the declaration was holden ill; for where the party to whom the act is to be done, does not come at the time and place appointed, the other ought to shew that he came at the last time of the day which the law has appointed for the doing of the act; and if he came there before, he ought to shew that he continued there to the last time. And that as the stock could only be transferred when the Com [111] pany's house was open, which was at stated hours of the day, the plaintiff should have averred the usage of the Company in that respect, and that he came there at the proper time, and staid there till after the house was shut. Here there was no such averment, nor evidence of the fact,

Erskine and Richardson shewed cause against the rule, and endeavoured to distinguish this from the case cited; for there the question of a legal tender arose upon a demurrer to the declaration, and here it arises after verdict (b), upon an averment of a tender and refusal; which latter was there omitted, And here there was evidence to go to the jury that the defendant would not accept the stock then or at any time; for on a day subsequent, when there was a direct tender and refusal, the defendant made no objection to take the stock, on the ground that it was not properly tendered to him on the day, but assigned another reason, which shewed that he considered the contract as not binding upon him at all. And to enforce the strict rule of law with respect to tenders on such occasions, would, in most instances, render redress impracticable for breaches of contract in these cases. Besides, the case cited was one of a contract to be performed at a specified time and place; which is not so here, where

(a)

Ld. Ray. 686. Com. Rep. 116. 2 Salk. 623. 3 Salk. 343 and 12 Mod. 529.

(b) Vide the Report of the case cited in Salk. 623,

the

the contract, as alleged, was to be performed on request (a), which must be understood of a reasonable request; and here * there was evidence of a direct request after the 5th of May, and a refusal.

Lord ELLENBOROUGH, C.J. The plaintiff cannot sustain the action without shewing a tender of the stock and a refusal, or that which in law is tantamount to a tender and refusal. That must be by shewing either an actual tender and refusal, which is not pretended to have been done in this case till after the 5th of May; or by shewing that the plaintiff staid at the Bank to the last time of that day when a tender could have been made, which was so long as the transfer books remained open, and that he was there ready to have transferred if the defendant had been there, and would have accepted the stock. From the nature of the contract, it is evident that it was meant to be performed on the day on which it was made, for the price was calculated accordingly, and the only place where the transfer could be made was at the Bank. The plaintiff, therefore, ought to have shewn that he had done every thing as far as in him lay towards the execution of the contract, according to the case cited, by waiting till the final close of the transfer books at the Bank on that day, which would have been a sufficient substitution of the more formal evidence of an actual tender and refusal. But here there was neither a tender in fact nor in law.

The other Judges concurred in this point.

Rule absolute.

(a) In another case of the same kind, of Bordenave v. Bartlett, which came in upon a similar rule immediately after this case, the evi. dence appearing to be, that the stock was contracted to be transferred on a certain day, and the averment in the declaration being the same as in this case, that it was to be transferred on request, the Court said, that if the objection had been taken at the trial there must have been a nonsuit, and on that ground the rule for a new trial was made absolute.

1801.

BORDENAVE

against GREGORY.

*[ 112 ]:

64

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